The Land Acquisition Amendment (No. 2) Act, 2002 was passed by Parliament
on Thursday 19th September, 2002. The Bill was published in the Government
Gazette on Friday 13th September, 2002. Although parliamentary Standing
Order No. 102 requires every Bill to be published at least 14 days before
being introduced to the House, the House suspended standing orders and
the Bill passed through all its stages, with certain amendments, on 19th
September. It is anticipated that promulgation of the new Act into law
will follow shortly.

Sections 5, 7
and 9 of the Land Acquisition Act have now been amended. The amendments:

cover administrative
shortcomings in relation to service of a ‘preliminary notice of acquisition’
under section 5 of the Land Acquisition Act;

introduce a presumption
that compulsory acquisition is intended for agricultural resettlement;

increase penalties
for non-vacation of the property.

Preliminary notice
of acquisitionSection 5(1)
of the principal Act requires the acquiring authority to publish a preliminary
notice of acquisition in the Gazette and to serve the notice on the owner
and on anyone with a financial interest in the land - such as banks holding
a mortgage on the property - where their interest is registered at the
Deeds Registry. This is to give them 30 days in which to lodge written
objections with the acquiring authority - s. 5(1)(a)(iii).

In the recent case
of Tengwe Estates Mr Justice Hungwe held, on 7th August, 2002,
that failure to so serve a mortgage holder rendered both the preliminary
(section 5) notice and the final (section 8) order null and
void.

Section 2 of
the new Act amends section 5 so that a preliminary notice may be served
on such secondary parties at any time up to 30 days before the service
of the final section 8 order.

The only material
change to the Bill was to alter the proposed period of no notice for secondary
parties to ‘not less than 30 days’. It is understood the amendment to
the Bill was requested by the Parliamentary Legal Committee. This is not
surprising since section 16(1)(b) of the Constitution requires "the
acquiring authority to give reasonable notice of the intention to acquire
the property … to any person owning the property or having any other interest
or right therein that would be affected by such acquisition."

The Bill failed to
take account of this Constitutional stipulation, as does amending Act
15 of 2000. Thus Act 15 of 2000 restricted service of notice only to those
with registered interests, and repealed, apparently contrary to the Constitution,
the previous requirement in section 5(1)(b)(ii) to serve notice on "any
other person who it appears to the acquiring authority may suffer loss
or deprivation of rights by such acquisition whose whereabouts are ascertainable
after diligent inquiry". It is a moot point whether spouses,
for example, who are not the registered owner should receive notice pursuant
to the Constitution.

Presumption of
agricultural resettlementIf written
objections are received, section 7 of the Act obliges the acquiring
authority to apply to the Administrative Court within 30 days of the issuing
of a section 8 order for an order confirming the acquisition.

Section 3 of
the new Act relieves the acquiring authority of the need to prove to the
Administrative Court that the land is suitable for agricultural resettlement
- as inferred by section 16 of the Constitution - by introducing
a presumption into section 7 that it is so suitable on a written statement
from the acquiring authority that the land has been used for agriculture
at any time in the last 50 years and is to be acquired for agricultural
resettlement.

Invalid section 8
ordersSection 9
of the principal Act - as amended by section 3 of Act No. 6
of 2002, dated 10th May, 2002 - gave the owner 90 days from service
of a section 8 order in which to vacate the property.

If a section 8
order is or becomes invalid for any reason, such as the Tengwe
case above, section 4 of the new Act amends section 9 to provide
that:

where the order
is corrected within the original ninety days, the period is not extended,
and

where a corrected
order is served after the expiry of the original ninety days, the period
in which the owner must vacate is reduced to seven days.

Increased penalty
for not vacatingSection 4
of the new Act also amends section 9 of the principal Act to provide for
an increased penalty for failure to vacate the property within the stipulated
time limit - up from $20,000 fine and/or two years’ imprisonment, to $100,000
and/or two years’ imprisonment. This is the third time that such penalties
have been introduced or increased since 2000.

Ministers not constitutionally
appointedThe amended
section 9, relating to invalid section 8 orders, appears to cater for
any finding by the Supreme Court that the Minister signing a (s. 5)
preliminary notice of acquisition or section 8 order may not have been
appointed constitutionally. In a recent case the High Court made an interim
order (on 4th July, 2002) effectively suspending a section 8 order
which was served on an owner on 8th May, 2002, until this issue has
been decided.

The basis of this
relief is that section 31E(1) of the Constitution states that any
office of Minister "shall become vacant upon the assumption of
office of a new President". The President’s new period of office
commenced on 1st April, 2002, and he did not appoint his Ministers
until some five months later, on 25th August, 2002. They became Ministers
upon taking their oaths of office - section 31G(3) of the Constitution
- on or about 26th August, 2002. This aspect of the case will therefore
turn on the meaning of ‘new President’.

Also in the same case
the applicant is submitting that the amending Act of 10th May 2002
was not lawfully enacted by Parliament, and further that it is conflict
with various provisions of the Constitution. The matter is will not be
heard in the near future but may be heard before the end of 2002.

The interim relief
has apparently been successful to date in regard to non-interference by
the authorities with the owner’s occupation and farming. Notwithstanding
this the local uniformed authorities have elected to disregard the representations
and documentation of neighbouring owners that they are in an identical
position.

Back-datingSave for
the increased penal provisions in section 9, section 5 of the new Act
back-dates all the amendments by two years and four months to 23rd May,
2000.

Annulled General
Laws Amendment Act, 2002The Land
Acquisition Amendment Act, 2002, promulgated on 10th May 2002, substantially
re-enacted the provisions of section 27 of the General Laws Amendment
Act, 2002, which was passed by Parliament on 9th January, 2002, promulgated
on 4th February, 2002, and annulled by the Supreme Court on 27th February,
2002.

The only material
change was that in the annulled Act the owner had to cease farming immediately
on receipt of a section 8 order, with 3 months to vacate living quarters,
whereas the Land Acquisition Amendment Act, 2002, gave owners 45 days
to cease farming and 90 days to vacate living quarters. Both introduced
penal provisions in addition to the previous eviction provisions for failure
to vacate.

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